Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
- Publication Type
Articles 1 - 14 of 14
Full-Text Articles in Law
The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross
The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
How would a court resolve a broker-dealer's action to enforce its class action waiver, which would require the court to disregard FINRA Rule 13204? The Supreme Court has identified one exception to the FAA's mandate: if a “contrary congressional command” displaces the FAA. Thus far, the Court has not had occasion to examine whether a class action waiver in a broker-dealer's employment agreement with an employee is enforceable under this exception. While the Court seems very supportive of these waivers, the securities industry is different. Securities arbitration is heavily regulated, and pronouncements by the SEC--when exercising power expressly delegated to …
Arbitration Case Law Update 2016, Jill I. Gross
Arbitration Case Law Update 2016, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
This chapter identifies decisions by the U.S. Supreme Court and selected federal and high state courts in the past year that interpret and apply the Federal Arbitration Act (FAA). This chapter also analyzes the impact some of these cases might have on securities arbitration practice.
The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross
The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross
Brooklyn Journal of Corporate, Financial & Commercial Law
Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.
More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …
Arbitration Case Law Update 2015, Jill I. Gross
Arbitration Case Law Update 2015, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
This chapter identifies decisions by the U.S. Supreme Court and selected federal circuit and high state courts in the past year that interpret and apply the Federal Arbitration Act (FAA) and could have an impact on securities arbitration practice.
The Great And Powerful Faa: Why Schwab’S Class Action Waiver Should Have Been Enforced Over Finra’S Rules, Clint Hale
The Great And Powerful Faa: Why Schwab’S Class Action Waiver Should Have Been Enforced Over Finra’S Rules, Clint Hale
Pepperdine Law Review
This Comment argues that recent Supreme Court precedent, circuit court decisions in contexts similar to FINRA’s oversight of the securities industry, and investors’ true interests all instruct that Schwab’s class action waiver should have been enforced over FINRA’s contrary command. Part II discusses FINRA’s role in the securities industry, the FAA and recent Supreme Court precedent interpreting the FAA, and the FINRA Rules that Schwab’s class action and joinder waiver violated. Part III analyzes why the conflict between the FAA and FINRA’s rules should have been resolved in favor of the FAA and supports this argument with discussion of federal …
Arbitration Case Law Update 2014, Jill I. Gross
Arbitration Case Law Update 2014, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
This chapter identifies decisions by the U.S. Supreme Court, the Financial Industry Regulatory Authority (FINRA) and selected lower federal and state courts in the past year that interpret and apply the Federal Arbitration Act (FAA) and could have an impact on securities arbitration practice.
Arbitration Case Law Update 2013, Jill I. Gross
Arbitration Case Law Update 2013, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
The U.S. Supreme Court and lower state and federal courts continue to decide cases under the Federal Arbitration Act (FAA) at an astounding rate. This chapter summarizes Supreme Court opinions over the past year that interpret the FAA, as well as selected lower court decisions that apply the FAA and could have an impact on securities arbitration practice.
Arbitration Case Law Update 2012, Jill I. Gross
Arbitration Case Law Update 2012, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act (FAA). This chapter identifies recent decisions by the Supreme Court under the FAA, as well as selected lower court decisions that could have an impact on securities arbitration practice.
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Pepperdine Dispute Resolution Law Journal
This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …
Investor Protection Meets The Federal Arbitration Act, Barbara Black
Investor Protection Meets The Federal Arbitration Act, Barbara Black
Faculty Articles and Other Publications
In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive proarbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious …
At&T Mobility And Faa Over-Preemption, Jill I. Gross
At&T Mobility And Faa Over-Preemption, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …
Arbitration Case Law Update 2011, Jill I. Gross
Arbitration Case Law Update 2011, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2010) (FAA). In this chapter, we identify recent judicial decisions in the area of arbitration law, and analyze their impact on securities arbitration practice.
Explaining "Explained Decisions": Nasd's Proposal For Written Explanations In Arbitration Awards, Marilyn Blumberg Cane, Ilya Torchinsky
Explaining "Explained Decisions": Nasd's Proposal For Written Explanations In Arbitration Awards, Marilyn Blumberg Cane, Ilya Torchinsky
Faculty Scholarship
No abstract provided.
Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone
Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone
Cornell Law Faculty Publications
Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light …